Babu Noorul Hasan Khan v. Ram Prasad Singh & Ors.

UNTWALIA, J.-This is an appeal by special leave from the judg­ ment of the Allahabad High Court disposing of ten connected civil revisions. Noornl Hasan Khan and others were the Zamindars of the village in which certain lands were given in Theka to Bhagwati Singh, Ram Prasad Singh and others on the 6th of March, 1948. The Zamindari vested under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, hereinafter called the Act, on ~ 30th of June, 1952. Disputes arose between the ex-Zamindars and the ex-Thekadars during the pendency of the proceedings under the U.P. Consolidation of Holdings Act. When entries in the list of tenancy T. holders were published under section 11 of the Consolidation of the Holdings Act relating to the lands in dispnte consisting, of several plots, objections were , filed by both the parties. Noorual Hasan Khan and others claimed that the plots in dispute being their exclusive Sir and Khudkasht would be deemed to have been settled with fhem by the State on the abolition of the Zamindari and their names should be recorded as bhumidars thereof. On the other hand Bhagwati Singh and. others claimed that they had become the Sirdars of the plots in dispute _and they resisted the claim of the ex-Zamindars. The Con­ solidation Officer referred the matter to the Civil Judge. of Azam­ garh in accordance with section 12 of the Consolidation of Holdings Act. ·The Civil Judge sent the matter for decision to an Arbitrator appointed under the Act as the dispute gave rise to the question of title. Shri Kailash Chandra, an Assistant Collector, was appointed as an Arbitrator. On consideration of the oral and documentary ,. I , ~OORUI. HA~AN '· RAM PARSAD (Untwalia, J.) . 979 evidence adduced before him. he rejected the clain;_ of ex-ZamimJars and decided the matter· in favour of the ex-Thekcdars. Bhagwati Singh and others were held to be the Sirdars of the plots in question . . Noorul Hasan and others filed objections to the Award before the Civil Judge. He allowed the objections on the ground that the illega­ lity of the Award was apparent ,on the face of it in as much as the Arbitrator did not apply the correct law in determining the rights of . the parties. He set aside the Award and remitted it back to the ·, , arbitrator for reconsideration in the light of his judgment. Appeals.were. taken to the learned Additional District Judge who by cfrder dated 8"-12.-1962 disagreed with the learned Civil Judge on the main question but_ affirmed his order of remand on the ground that in the Award many-.questions were left undetermined.· Both sides filed separate revisions befor:c the High Court. The High Court has allowed the revisions of the ex-Thekedars and dismissed those of the ex-Zamindars. Hence this appeal. The only point which was argued and agitated before us is whether Bhagwati Singh and others have been rightly held to be the Sirdars of the plots in question or whether the ex-landlords had become. the bhumidars. The. determination of this question depends upon a correct appreciation of the provisions of law contained in sections 12 E and 13 of the Act. We shall read the relevant portions of the two sections. They ~re as fol!ows =·"-· "12. Thekedars to be hereditary tenants in. certain cir­ cumstances.-(!) Where any land was in the personal culti­ vation of a person on the 1st day of May, 1950, as a thekedar thereof and the theka was made with a view to the cultivation of the land by snch thekedar personally, then notwithstanding anything in any law, document or order of ·court, he shall 'be deemed to be a hereditary tenant thereof entitled to hold, and when he has been ejected from the land after the said date, to regain possession ·as a hereditary tenant thereof liable to pay rent at herediiary raies. 13. Estate in possession of a thekedar.-(1) Subject to the provisions of Section l2 and sub-section (2>° of this section a thekedar of an estate or share therein shall, with IJ effect from the date of vesting, cease to have· any-right to or possess as such any land in such estate. .. c ' 980. SUPREME COURT REPORTS [!980] 1 S.C.R. (2) Where any such land was in the personal cultiva­ tion of the thekedar on the date immediately preceding the date of vesting, the same shall- (a) if it was sir cir khudkasht of the lessor on the date of the grant of the theka-;- be deemed for purposes of Section 18. to be the sir or khudkasht of the lessor on the date immediately preceding the date of vesting and the thekedar shall, wifh effect from the date of · vesting, become the asami thereof liable to· pay rent at hereditary rates. applicable on the date imme-. diately preceding the date of vesting and entitled to hold the land. as such for the unexpired period of the theka or for a period of five years from the date of vesting whichever is less; _/, - ,J (b) if it was not sir or khudkasht of the lessor on the date of the grant of the thcka and- (i} its area does not exceed thirty acres, be deem­ ed for purposes of Section 19 to have been held by the thekedar as a hereditary tenant liable to pay rent which shall be equal to the rent calculated at hereditary rates applicable on the· date immediately preceding the date of vesting, (ii) its area exceeds thirty acres, be deemed to the extent of thirty acres for purposes of Section 19 to have been held as a hereditary tenant as afore­ said and the remainder shall be deemed to be vacant land and the thekedar shall be liable to ejectment therefrom in accordance with the provisions of Section 209.'' It would be noticed from the provisions aforesaid that a Thekedar of an Estate ceases to have any right to hold or possess as such any land in such Estate with effect from the date of its vesting. This is what has been provided in sub-section (1) of section 13, But it is subject to two exceptions-viz., one the provision contained in section 12 and the other engrafted in sub-section (2) of section 13. There is no dispute between the parties that the 'land in possession of the Thekedars on the date of vesting was either covered by section 12 (I) or section 13(2}(a}. We are not concerned in this case with section 13(2)(b) as the land admittedly was the Sir or Khudkasht of the lessor namely the Zamindars. If such a land was in the personal J- .. , ,,-· t ' NOORUL HASAN v. RAM PARSAD (Untwalia, J.) 981 cultivation of a person on the 1st day of May, 1950 as a Thekedar thereof and if the Theka was made with .a view to the cultivation of the land by such T/u.kedar personally then, because of the' 11on-obsta11te. clause occurring in sub-section (1) of section 12 o[ the Act the Thekedar would be deemed to be a hereditary tenant o! t'he lantd entitled to hold as such and liable to pay P~lll at hereditary rates. · If, however, the land was in personal cultivation of the 'rhekedar merely as a Thekedar appointed to• collect rent from other tenants and inci­ dentally allowed to cultivate the Sir or Khudkasht land of the lessor then he will he a mere asami in accordance with section 13(2) (a) of the Ac:. The Arbitrator on a consideration of the Theka docu­ ment found that the theka was made with a view to cultivation of the land by the Thekedar personally. The interpretation of the Arbi­ trator was not such that it could enable the Civil Jndge to take the view that there was an error of law apparent on the face of the record. On the other hand it appears to us what the interpretation put by the Arbitrator was corn::ct. There 'is a subtle but clear dividing line bet­ ween the two types of cases one falling under sed:ion 12(1) of the Act and th.;, other coming within the ambit of section 13 (2) (a). In our opinion the High Court was right in its view that the Award of the Arbitrator was not fit to be interfered with. Fur the reasons stated above, we dismiss this appca1 but in the circu111stal1ccs make no order as to cost-s. N.K.A. Appeal dismissed.